The Civil Procedure - Essay Example

1 An aggrieved party can use the civil procedure to bring an action under contract or property law among other things. Under the circumstances of acontract the essential elements are offer, acceptance and intent to create legal relations. On formation of such a contract if it is found that there has been a breach of the contract, the aggrieved party can bring an action under the civil procedure. The civil procedure can also be used to bring an action under property law. Among other things, an action can be brought if it is found that on successful disposition of land, the owner refuses to transfer the property to the new owner. 2. A partnership ceases to exist or in other words is terminated where the single venture that was pursued is terminated; or where the term of the partnership was for a fixed period of time, which has lapsed; where it is consequently found that the partnership is illegal or for an illegal purpose; or where a court grants an order to one of the partner. 3. The courts in Barclays Bank v. O’Brien1 have classified undue influence into two classes; the first is actual undue influence where the claimant has to prove that the offender had used undue influence on the claimant to enter into the particular transaction. In the second class that is presumed undue influence, the claimant only has to prove that there was a relationship of trust and confidence which has been breached; there is no need to prove actual undue influence, once a confidential relationship has been established. 4. A lessee is under a duty to abide by the leasehold covenants which have been agreed upon in the agreement. Further the lessee has to maintain property so that third party entering the premises does not get affected from such non-maintenance. 5. Under the Statute of Frauds 1677 it has been clearly stated that contracts of surety must be made in writing and should be duly signed. However there are two exceptions which might be said to be relevant to surety, the first one is where there has been part performance and the second is where the defendant addresses the existence of a contract under an oath. 5 The general formation of a contract requires an offer (that is a definite promise to be bound by the contract provided that that certain terms and conditions are fulfilled), acceptance (an unequivocal intention to abide by the offer from the offeree), intention to create legal relations and certainty. However there are certain formalities which must be fulfilled for courts to find a contract. S.40 (1) of the Law of Property Act 1925 (repealed by s.2 of the Law of Property (Miscellaneous Provisions) Act 1989) clearly illustrates that any contract for the disposition of land or any interest thereof must be enforceable, that is the contract must be in writing, which contains the entirety of the terms and should be signed by both the parties. Further it can be stated that even if the formalities for the disposition of land is not followed, the courts can still find to be in existence of an equitable interest based on among other things constructive notice. The contract for immovable’s is relatively simpler, requiring just the general conditions listed above to be fulfilled for the existence of a contract to be established. 6. There have been found to be two types of warranties in insurance contracts, that is affirmative or promissory. A promissory note confers a statement of facts relating to the future or that certain facts will remain true during the tenure of the policy. On the other hand, an affirmative warranty indicates about the facts which were present at the time of the formation of contract. If it is found that that the affirmative warranty is untrue then the contract is held to be void from the beginning. However if it is found that the promissory warranty is found to be true, then the insurers have the option to make the option of a voidable contract when the warranty becomes true. 7 Repudiation has been defined as a refusal in order to avoid the contract or where the contract is brought to an end for a breach of a condition. Repudiation can further be said to include situations where the party abandons the obligation due on it prior to the dat of performance. A repudiatory breach is said to occur where the party shows its intentions through its words or conduct that it would not complete the contractual obligations imposed on it. This breach has been considered to be a serious breach of contract. A repudiatory breach is found where there has been a renunciation, or where the entire contract is not fulfilled, and incapacitation. 8 Indemnity insurance tends to protect patrimonial interests, while on the other hand non-indemnity insurance protects non-patrimonial interests. It has further been stated that the interest which is important for non-indemnity insurance should be present at the time when the insured act occurs. This is not a requirement found in indemnity insurance.In indemnity insurance the amount claimed for the damages is directly proportional to the loss suffered or to the amount of insurance if found to be lees than the loss suffered. However in non-indemnity insurance the amount paid and the loss which has been suffered are not proportionate. Under indemnity insurance the loss or damage suffered which has been insured against is made good. However, in non-indemnity insurance a fixed sum of money is paid to the beneficiary in the instance of the event occurring. 9 The ratio decidendi of a case is defined as the ‘reason for deciding’ the case in a particular way. The ratio is an considered to be a significant part of the law which the judge used in orde to formulate his judgment. These are held to be binding on future cases in the same (in particular circumstance) or lower courts dealing with the same issues. Obiter Dicta is said to be ‘things said by the way’. These are not considered to be binding on future case, but are said to be persuasive on future judges. 9Essentialia negotii is considered to be an important aspect of contract law, meaning ‘essential aspects’ or in other words ‘basic terms’. The term clearly indicates the general things that have to be fulfilled for a contract to be found legally binding and largely effective. Naturalia has been defined as legal terms which are thought to be inherent within a contract by operation of law so are binding per se. These are terms which are effective without any formal agreement being formed for their enforcement, but they can be expressly exluded from a contract. Incidentalia are defined as all other terms which form a part of the contract, these can either be expressly stated within the agreement or can be impliedly construed. 10The basic purpose of this act has been to prosper economic development and to achieve social justice. These have been done through the regulation of the labour practice that is by the establishment of the basic conditions of employment and by varying such conditions. The Act does not cover independent contractors, people who sign a contract with the employer that they are independent contractor, even though it is seen that they are employees; it does not apply to member of the National Defence Force, the National Intelligence Agency and the South African Secret Service. 11The parties to bill of exchange are the acceptor, drawee, drawer, endorser, and payee. In the instance of a cheque the parties are maker, drawee and a payee. Promissory note has an issuer and payee. 12 The main requirements for a valid insurance contract are offer and acceptance, which takes place when an application for insurance is made through the filling of a proposal form from an insurance company and returning it to the company, this constitutes an offer. If the insurance company accepts the offer and insures the person then it can be termed as an agreement. The consideration for the agreement is the premium that has to be paid to the company. On the other the insurance claim made can also be termed as consideration to the insurers. Thus a value to the relationship is being provided for. There is further the requirement of legal capacity and legal purpose which must be fulfilled. Further the contract requires utmost good faith, is a contract of indemnity, requires an insurable interest, and requires causa proxima 13If a person enters into an agreement by stating that he is the principal, but in reality he is an agent, then the doctrine of undisclosed principal comes into play. The doctrine provides that if the agent can prove that he remained within the provided authority, then the undisclosed principal will be said to be a part of the transaction and so can sue or may be sued on the contract between the agent and the third party. The doctrine will intervene because it is a contract between the undisclosed principal and the third party. However this is limited to those contracts for which the agent had authority; where the agency arrangement was impliedly denied (Humble v. Hunter2) or is expressly denied. 2.1 The type of contractual relationship that can be ascertained from the facts is that of an agent and principal. 2.2 Grace has to ensure that she does not abuse the confidence bestowed upon her. She must act in accordance with what she has been advised with and has to perform the contractual obligation. 2.3 Frank can argue that a fraud has been perpetrated against him by Grace and as aresult she has made undisclosed profits. The courts will construe this to be a fraud as there is sufficient evidence of undisclosed profit. 2.4 If it is found that in the certain situation of an undisclosed principal, that the agent has acted within his authority then the risk will be transmitted to the principal as it is in reality a contract made between the principal and the third party. 2.5 Grace can claim for liability if she has undertaken personal liability; where the principal was undisclosed; where the agent acts on behalf of the principal and enters into a collateral contract.. 3.1 There is no possibility of justifying the dismissal is the possibility of claiming that the employee’s were members of the union. However, it can be argued that restructuring is under ‘economic, technical or organizational reasons’ which justify the dismissal. Further, it can be argued that alternative employment has been provided for and so the workers have not been fired. 3.2 For procedural safety the company should give in a prior notice for the termination and should provide for the justification of such an unfair dismissal. Further it has to be given according tos.86 which states that the notice period varies according to the duration of employment of the employee. Further the notice must state the date of expiry 4.1 The only possible defence that can be argued by Natalie is the Statute if Frauds 1677, which requires for a contract of surety to be in writing. This is not clear from the facts. If it is found that the surety was not in writing then there will be no contract. However this is unlikely. Further even if there is no written agreement it can still fall under the Act’s exception that is there has been part performance and so she would be held accountable. 4.2 The only possible difference that can be sighted in the answer is that both Natalie and Oscar will be held equally accountable for the debts unless provided otherwise in the agreement. 4.3 The only difference in the answer would be, that the right of surety are only ancillary and derivative and if it is found that Natalie was a co-debtor, then she would primarily be held accountable and liable for the debts. 5.1 The common law duties of the tenant are to pay rent when due, to avoid waste of property and to keep the premises in a good condition, so that third parties are not affected, if they are then he would be held negligent. 5.2 Subrogation has been defined as a legal technique, whereby the insurer steps into the position of a person so to get the benefits and remedy the defendant. Further the insurer is allowed to recover the amount from the insured that which is over compensated. Under a surety the person is subrogated to the creditor’s claims and has to pay the amount to the debtors. 5.3 An ordinary partnership can be formed formally or informally and generally constitutes of the partners sharing the liability. However the limited liability partnership formed under the 2002 act is a corporate body with its own separate legal entity from its members and so has the advantages as well as the disadvantages of the company. 5.4 The main essentialia for a contract of lease is that it should be for a period of years, that is a minimum of 7 years and a maximum of 99 years as stated by the LRA 2002. Further for it to be legally binding after the enactment of the new act, it should be registered with as required by the act for it to be legal. Further it must be specified that it is a contract of lease and so is of a proprietary nature. 5.5A warranty has been defined as an assurance by one party to another party by alleging that certain facts will happen or are true. If it is found that such a warranty does not exist then the party relied upon it, then a remedy will be granted. A seller can make an express warranty, by stating that the good has certain specifications, which turn out to be untrue. On the other hand there are certain warranties which are implied and so form part of the transaction. A warranty is said to occur when a defect occurs in the product. A seller can argue that the statement made did not in anyway induce the claimant to acknowledge acceptance and so is not a warranty. Further he can state that the warranty does no go the root of the contract. 5.6 Ownership can be transferred through by transferring sale deed in unregistered land, by acknowledging it under the registration procedure, under the LRA 2002 and by transfer of a leasehold for a specified number of years. 6.1 The issue in this question is the frustration of the contract which makes it impossible to be carried out. In Taylor v. Caldwell3 it was found that if the fulfillment of the contract is brought to a stop by unprecedented acts, for which neither of the party is responsible, then contract will terminate and the parties discharged. The legal consequences that flow from the contract will now be considered. In Krell v. Henry4 it was found that the rent could not be recovered because the contract had been frustrated before the amount was due. Thus it can be said that the purchase price will have to be returned by Kyle. However, as illustrated by Fibrosa5 he can claim for the part performance. 6.2 The issue in this part is about the point that there has been no performance at all. It can be said that as illustrated by Taylor6, the parties are discharged. The problem lies with the advance payment. It can clearly be argued that there was no performance of the contract and the amount was not due, so it shall be deemed to be returned to Dennis. 6.3 The issue at stake is whether the event frustrating the performance of the contract after the date given for performance will make a difference. In Chandler v. Webster7 it was found that the money was due before the date of frustration, but the burden was laid down on the creditor, because as found in Krell8 the obligation only matured after a discharge of the contract. However the Fibrosa9 case changed the position and stated that the contract remained in force up to the point of frustration and so was not void ab initio. Thus it can be said that Kyle will have to return the money to Dennis. Bibliography ASSOCIATION OF CHARTERED CERTIFIED ACCOUNTANTS (GREAT BRITAIN). (2008). Corporate and business law (English). ACCA paper, F4. London, BPP. Read More